This article was originally published on opendemocracy on the 15. August 2018.
With EU states brushing away their responsibilities to provide a port of safety for people rescued at sea, weaker parties are left to deal with the consequences of this deadly approach.
For nearly three weeks 40 people who left from Libya were kept from disembarking in a safe port. They were stationed a few miles off the coast of Tunisia, in front of Zarzis. I have been in constant contact with members of the crew of the Sarost 5 – a supply vessel for the Miskar oil rig off the Tunisian coast – and people amongst the rescued, over recent weeks.
The stories told by the migrants are horrific: there are testimonies of torture, horrendous prison conditions and forced labour in Libya, and of 5 days spent drifting on sea, before the rescue took place. For three weeks they were forced to wait on a vessel unfit for so many people whilst negotiations – supposedly – took place between the EU and the Tunisian state. Despite international human rights law, and obligations under maritime law to rescue people in distress at sea, no state was willing to take them in. They were left in a vacuum of responsibility.
Beyond the legal argument, this case, which was minutely documented by Alarm Phone, illustrates the politicisation of the responsibility for allocating a port of safety (POS) in the past months in the central Med. To be brought to safety, it is no longer enough to endure the crossing in a flimsy dingy beyond Libyan territorial waters and hope to be rescued by a bigger vessel. Now, people can either be ‘legally’ pushed back to Libya (a documented ‘hell’ for migrants) if the Maritime Rescue Coordination Center (MRCC) in Rome calls the Joint Rescue Coordination Centre (JRCC) in Tripoli and the Libyan Coast Guard (LCG) manages to conduct the rescue. Or, as in this recent development, people have to endure being at sea for another two weeks, left in the dark as to when, where and if they will be allowed to disembark.
This short piece attempts to show how recent developments in the contested space of the central Med have created the conditions necessary for black holes of legal, political and moral responsibility surrounding rescues at sea to emerge. It gives particular importance to the political context surrounding the case of the Sarost 5, showing how the various actors involved negotiated responsibility for the people of the Sarost 5, ultimately resulting in a stand-off between unequal political entities. In support of this argument I sketch out three different rationales: those of the UNHCR and Malta, that of Tunisia and the rationale of the Sarost captain and crew.
Summary of the case
The 40 people were first discovered in the Maltese SAR zone and the RCC in Malta ordered a ship to the scene on July 13. Caroline III – the closest vessel – provided food and water. Yet they kept some distance and only allowed 8 people who had jumped in the water on board. These people were eventually transferred to the Sarost 5, another supply vessel stationed nearby, allegedly on the orders of the company operating the nearby platform. At this point, the Sarost 5 called Italy, France and Malta, searching for a port to disembark the people. With no conclusive response, they headed for Sfax. They soon turned towards Zarzis, once the authorisation to disembark in Sfax was refused. In Zarzis, they were also denied entry to the port. From then onwards, the Sarost 5 waited in front of the port of Zarzis for more than two weeks, and the people onboard were made to sleep on cardboard on deck, exposed to the spray from the waves and the heat of the sun.
Finally, on July 28, the Tunisian prime minister, Youssef Chahed announced that Tunisia would welcome the migrants of the Sarost 5, on humanitarian grounds.
There are several legal loopholes which might explain why there was such contestation around who should grant the disembarkation to the 40 people on board the Sarost 5. The main one perhaps being that, despite the obligation to indiscriminately render assistance to people in distress at sea following article 98 of the United Nations Convention on the Law of the Sea (UNCLOS), a corresponding obligation for the state who coordinated the rescue to also provide a port of disembarkation, is lacking. This means that it is up to the states who have coordinated the rescue to agree on a place of disembarkation every time, as highlighted in the work of Violeta Moreno Lax.
Then, there is the dispute around what constitutes a port of safety and whether Malta violated the principle of non-refoulement, and its obligations under EU human rights law. Malta coordinated the first response by ordering the Caroline-III (a supply vessel, sailing under the Vanuatu flag) to the scene, in the Maltese rescue zone. The effective control of Malta in this situation before the handover to the Sarost is a matter of legal argumentation. Other cases where a violation of Art. 4 of Protocol 4 of the ECHR which prohibits collective expulsions has been ruled, such as in the Hirsi Jamaa case or the ND & NT case, involved border guards or direct control of state authorities, which meant that regardless of territorial sovereignty, the court considered that the claimants fell under the jurisdiction of Italy and Spain, respectively. In this case, there was a rescue coordination by Malta, who called upon the assistance of Caroline-III. As Malta coordinated the first rescue efforts, following customary international law, they should have found a port of safety for the 40 people. Instead, they left the actual transfer of the people from their small wooden boat to a larger boat, to a Tunisian vessel. Here the issue becomes thornier still: could sending the Sarost 5 who finally took the people on board, to Tunisia, be considered as sending them to a port of safety?
Port of safety: a contested definition
The high seas are not a legal blind spot – on the contrary, they are criss-crossed by numerous treaties and regulations as shown above. However, the Sarost 5 case shows to what extent the politicisation of the crossings of people in the central Mediterranean, added to the impact of the newly-elected far right government in Italy, has enhanced the prospects for the responsibility for the protection of individuals rescued at sea to be tossed around like a hot potato. Safeguards provided by European Union law such as the ECHR, as well as judgements such as the Hirsi judgement, have narrowed states’ abilities to rid themselves of the responsibility for pushing people back to the places where their lives are at risk and excluding them from mechanisms of protection and effective remedies for the violation of their rights.
However, in the current political configuration in the central Mediterranean, and EU-rope more generally, the confusion around the legal obligations of states for rescue at sea, added to the securitized discourse around migration, have turned the definition of rescue and what constitutes a port of safety into a discursive battleground which far exceeds black letter law. The two weeks’ ordeal of the Sarost 5 is the perfect illustration of this development. Whilst the vessel was stuck at sea, different parties with differing interests and power positions, argued over where people should be allowed to disembark.
Following the transfer of the responsibility for the 40 people to a Tunisian vessel, Malta argued that Tunisian ports were the closest ports of safety for disembarkation. This claim was supported by Special Envoy of the UNHCR for the Central Mediterranean situation, Vincent Cochetel who replicated Malta’s press release in his communications and also stated that the reason there had not been a faster disembarkation was because the migrants themselves had been refusing disembarkation elsewhere than in Europe. Amid contested reports about the UNHCR actually having been on board which clashed with their claims that they had spoken to the people on board, the UNHCR’s role could be seen as ambiguous. As well as supporting Malta’s claims, on a more fundamental level, the UNHCR’s operations in Tunisia also give states such as Malta further legitimacy to rid themselves of their responsibilities. Indeed, although there is no national legal framework for people to apply for international protection in Tunisia, the presence of the UNHCR there provides potential asylum seekers with access to (limited) protection mechanisms.
Countering Malta and the UNHCR’s claims, human rights defenders and activist groups such as the Alarm Phone, the Forum Tunisien des Droits Economiques et Sociaux and Euromed Rights said that Tunisia could not be considered a port of safety due to the lack of legislation on asylum and the documented struggle that asylum seekers face there. With no access to housing or social protection for refugees in Tunisia, it is clear that there was a high likelihood that basic rights of potential asylum seekers would not be fulfilled. Further, Tunisia’s ongoing financial crisis and the fact that in the first quarter of 2018 the largest group of border crossers arriving in Italy were from Tunisia, raised questions as to the country’s capacities to receive people in a dignified way. Although a dignified life for migrants in Europe is far from guaranteed, many of the people of the Sarost 5 have family in Europe and had risked their lives to reach its shores; for most, the prospect of being brought to Tunisia was terrifying for the simple fact that they had no support structures there, let alone that they feared they would be sent back to their countries of origin.
Although the Tunisian RCC confirmed that they considered Malta to be responsible for the people, there was little further official communication from the Tunisian state. That is, until the late declaration of the prime minister, Youssef Chahed, that Tunisia would receive the rescued people on humanitarian grounds. It is conceivable that the political context in which the contactless handover took place, was what caused the delay and exacerbated the difficulty for Tunisia to accept the disembarkation. Indeed, the Sarost 5 case took place shortly after the declarations of the EU council summit at the end of June, which reaffirmed the readiness of the EU to install a “regional disembarkation mechanism” in the countries of North Africa. This proposition was firmly refuted by all North African states.
With the disembarkation of the Sarost on its shores, Tunisia was evidently worried about creating a precedent for more disembarkations. It remains unclear if and what negotiations took place behind closed doors during the two weeks the 40 people stayed marooned in front of Zarzis. Tunisia’s reliance on cooperation from the EU and the EU’s major role as their main trading partner in a time of economic crisis, surely put it in a difficult bargaining position.
When NGO ships rescue people and are not given the authorisation to dock, such as was the case for the Aquarius in June 2018, they have media teams, lawyers and a communication strategy to attempt to unblock the situation. In the Sarost 5 case, the rescued people were transferred to a private supply vessel. The captain of the Sarost 5 was therefore put in an awkward situation: the Sarost 5 was both isolated and jolted on various sides to act in different ways. NGOs contacted the boat to provide medical aid on board but were not given permission to board. ProActiva Open Arms, another NGO ship, approached the vessel twice but on the second occasion, was told to leave Tunisian territorial waters by the Tunisian authorities.
Amongst all of this, the captain announced several times that his priority was simply to disembark as soon as possible, regardless of where this would be. Private and commercial vessels having to fill the gaps created by a failing EU migration regime, not only puts huge strain on an untrained crew for such situations, it especially risks imposing an economic logic onto the vital obligation to render assistance to those in distress at sea. With the dramatic decrease in NGO ships, and the lack of other state-sanctioned rescue missions such as past missions like Mare Nostrum, it is likely that more commercial ships will be called to step in for rescues in future. With the current configuration in the Central Med, rescues pose a financial risk for companies as they face the possibility of long periods of stand-bye in cases when there is a stand-off between squabbling states over the attribution of a POS. As captains and companies become weary of political games, there is a growing likelihood that rescued migrants will not only be at the mercy of irresponsible states, but also of impatient companies, keen to drop them off in the first port possible – regardless of whether it is safe or not.
The case of the Sarost 5 is an illustration of how the central Mediterranean is a field of exacerbated power imbalances, criss-crossed by declarations of states and decisions which do not comply with international law – the most recemt and prominent example of which is perhaps, the new Italian government spearheaded by its infamous interior minister, and its declaration that Italian ports would remain closed to rescue boats carrying migrants. On top of the ongoing deaths at sea caused by the lack of safe and legal flight routes, this has now created a situation where weaker parties – southern states or simple commercial vessels – are left to deal with the consequences of the EU’s deadly approach to migration at its external borders. With EU states so easily brushing away their responsibilities to provide a port of safety for people rescued at sea, it is not difficult to imagine that parties who face higher risks of being criminalised or who mimic the attitudes of the more powerful, will find it much easier to disregard their obligations in future too.